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Disciplinary Interviews & Compelled Reports -- Garrity Warnings

     Despite the protections in Garrity, a state employee can waive those rights after he is fired and allow his prior compelled statements to be used by the federal government in a criminal investigation concerning the death and beating of an inmate, provided the waiver was voluntary, knowing, and intelligent. Further, in this case, the statements made by a corrections officer were not compelled because he did not show that he subjectively believed that his statements were compelled on threat of job loss, and that this belief was "objectively reasonable." But even if they were compelled, he adequately waived his Garrity protections, United States v. Smith, #13-15476, 2016 U.S. App. Lexis 7762 (11th Cir.).

Disciplinary Procedures - In General

     A female tenth grader took a pie to firefighters. One male firefighter gave her a tour of the station and took a picture of her next to a fire engine. He got her email address to send her the picture and subsequently engaged in a risqué exchange of emails. After the girl's father complained, the firefighter was assigned to a training center where he allegedly touched a female co-worker in an unwelcome manner and made "inappropriate" remarks about their private lives. After an investigation, he was fired. In reviewing the disciplinary action, the trial court did not err in finding that the email exchange, if with a willing unmarried adult, would not violate any existing policy, and it was not alleged in any charge that the firefighter knew the girl was a minor, but the question could be further reconsidered on remand. The trial court, which set aside the termination, did err in failing to consider interview transcripts regarding the firefighter's behavior towards the female co-worker. Seibert v. City of San Jose, #H040268, 2016 Cal. App. Lexis 435.

FLSA - Overtime - in General

     Current and former police officers claimed that the city violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-19 by failing to include payments of unused portions of their benefit allowances when calculating their regular rate of pay, resulting in lower overtime pay. The federal appeals court agreed with this claim as the money paid for unused benefits was payment for work. The plaintiffs were entitled to liquidated damages because the city failed to show that it attempted in good faith to comply with the law. Flores v. City of San Gabriel, #14-56421, 2016 U.S. App. Lexis 10018 (8th Cir.).

Firearms Related

****Editor's Case Alert****

     Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.).

First Amendment Related

     A federal employee failed to show that she was not promoted because of comments in her performance evaluation when that evaluation was not shown to be actually used in the promotion process. Accordingly, even if comments in the evaluation referred to her protected First Amendment speech (being quoted in a newspaper article about race discrimination within the agency employing her), she could not show that she was not promoted because she exercised her First Amendment rights. Performance ratings that have a negative impact on promotion potential do not constitute an adverse employment action unless the rating actually led to the denial of the promotion. Wilson v. Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th Cir.).

Handicap/Abilities Discrimination -- In General

     A courthouse employee who assisted pro se litigators claimed that before she left to take a better job she was discriminated against because of her black race and her disability of chronic fatigue syndrome. Upholding summary judgment for the defendants, the court noted that the county was her employer and that all alleged discriminatory acts had been committed by state employees, and could not impose liability on her employer. Further, the two specific requests she had made on account of disability--seeking time off--had both been granted. Wells v. Winnebago County, #15-1805, 2016 U.S. App. Lexis 7647, 129 Fair Empl. Prac. Cas. (BNA) (7th Cir.).

Handicap/Abilities Discrimination -- Accommodation In General

****Editor's Case Alert****

     A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions." Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir.).

Political Activity/Patronage Employment

     The chief deputy clerk in a courthouse asserted that her firing constituted unlawful retaliation for political affiliations as well as gender discrimination. Rejecting the political affiliation claim, the appeals court found it was permissible to fire her on that basis as she was in a job where it was appropriate to require personal and political loyalty. She also failed to provide any evidence that the reasons given for her termination were a pretext for sex discrimination. DePriest v. Milligan, #15-1365, 2016 U.S. App. Lexis 9630 (8th Cir.).

Retaliatory Personnel Action

     An employee of a state agency claimed that she suffered unlawful retaliation for opposing an employment practice prohibited by Title VII and other employment discrimination laws. The conduct she opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was not a “practice made an unlawful employment practice” by Title VII. Cooper v. N.Y. State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec. (CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.).

Whistleblower Protection

     An employee of the Centers for Disease Control and Prevention claimed that agency officials violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Because of this he was allegedly not invited to certain meetings, and discouraged from participating in certain projects to which he was assigned. Various supervisors also allegedly treated and evaluated him poorly and placed him on a Performance Action Plan. A federal appeals court reversed the dismissal of the claim, finding that the employee had adequately alleged that at least one of his supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).

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     Firearms Related: New Technology Benefits Law Enforcement by Tracking Sidearm Use, by Danielle Pompa, Stephen S. Owen, and Tod W. Burke, FBI Law Enforcement Bulletin (June 2016).

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